Chapter 5 Answers to quick test questions

Under TEU Art 1 the broad aim of the EU is stated to be ‘an ever closer union among the peoples of Europe’. This is achieved through pursuing the objectives of the EU. These include in particular the completion of the internal market, Member States adopting the single European currency and providing EU citizens a common area of freedom, security and justice.

The main case that established the supremacy of EU law is Costa v ENEL. Here, the European Court of Justice found that certain provisions of the Italian Constitutional Code were contrary to articles of the EC Treaty. On this basis, the ECJ held that the Treaty was directly enforceable in the Member States and, to ensure uniformity and consistency across the union, it should take precedence over measures of domestic law.

Other cases coming after Costa and adding weight to the principle were Internationale Handelsgesellschaft mbH v Einfuhr und Vorratsstelle für Getreide und Futtermittel and Ammistrazione delle Finanze dello State v Simmenthal SpA.

The key provisions and their effect in the UK constitution are as follows:

• Section 2(1). This provides that ‘[a]ll such rights, powers, liabilities, obligations and restrictions from time to time created or rising by or under the Treaties … are without further enactment to be given legal effect … in the United Kingdom’. It is as a result of this section, therefore, that EU law is given effect in the UK.
• Section 2(4). This works alongside section 2(1) in requiring the UK courts to interpret domestic law in line with provisions of EU law.

The Merchant Shipping Act 1988 changed the criteria for fishing vessels wishing to fish in British waters. One of the new requirements was that all such vessels be based in and managed from within the UK. Factortame Ltd, a Spanish company, challenged this, arguing that it was contrary to EU law.

The significance of the case, and of the House of Lords’ judgment, is that the 1988 Act was disapplied in preference to EU law. This amounted to a limitation on the sovereignty of Parliament, effectively requiring its enactments to be consistent with EU law.

Laws LJ, in Thoburn v Sunderland City Council, explained ‘We should recognise a hierarchy of Acts of Parliament: as it were ‘ordinary’ statutes and ‘constitutional’ statutes … Ordinary statutes may be impliedly repealed. Constitutional statutes may not’.¹

In R (Miller) v Secretary of State for Exiting the European Union, a majority of the Supreme Court held that the Government could only trigger Article 50 – thereby setting in motion the Brexit process – with parliamentary approval. The basis for this view was that EU law is an ‘independent and overriding source of domestic law’ which cannot be changed without parliamentary involvement.² Such fundamental changes to the constitutional arrangements of the UK, they said, could not be effected by government Ministers alone.

The main consequence of the decision was the enactment of the European Union (Notification of Withdrawal) Act 2017, which gave the Prime Minister the power to trigger Article 50, which she did on 29th March 2017.

As originally enacted, the main intention of the European Union (Withdrawal) Act was to prepare the UK legal system for Brexit. Primarily, the 2018 Act sought to achieve this by providing that on the day the UK leaves the EU, the European Communities Act 1972 will be repealed, and that EU law that has become part of UK law under the Act will remain part of UK law, but as ‘retained EU law’. The aim was to ensure that legal continuity is maintained. Then gradually, individual laws could be repealed or amended by the UK Parliament, as the UK would no longer be bound by EU law as it is no longer a member.

As required by TEU Art 50, the EU and UK agreed the Withdrawal Agreement, which set out the terms on which the UK left the EU. This took effect on 31^st January 2020. The most important element of the Withdrawal Agreement was the transition period. During the transition period, although no longer a member of the EU, the UK remained bound by EU law. The transition period lasted from 31^st January 2020 to 31^st December 2020. The intention was that at the end of the transition period, the future and ongoing relationship between the UK and the EU would have been negotiated and would take effect.

This means that to give effect to the Withdrawal Agreement, the European Union (Withdrawal Agreement) Act 2020 which implements the Withdrawal Agreement into UK law, needed to amend the European Union (Withdrawal) Act 2018. It does this in two key ways. Firstly, although formally the European Communities Act 1972 had been repealed, new sections were inserted into the 2018 Act, retaining the effect of the 1972 Act for the duration of the transition period. This meant that because EU law was still part of UK law, the provisions of the 2018 Act which provided for retained EU law were amended by the 2020 Act so that they only took effect at the end of the transition period.